The law affects a usurious contract with two consequences, which should be discriminated. One is, the avoidance of the * contract; the other is, the penalty for the breach of the law. Now the penalty is not incurred until usurious interest be in some way paid or received; although the contract may be avoided for this cause, at any time; and it is sometimes a very difficult question, at what time or by what act the usury is completed, (m)2 Although an original contract for the

(k) Green v. Kemp, 13 Mass. 515; Mechanics Bank v. Edwards, I Barb. 271; Sands v. Church, 2 Seld. 347. See also Stoney v. Amer. Life Ins. Co. 11 Paige, 635; Cramer v. Lepper, 26 Ohio St. 59.

(l) Huntress v. Patten, 20 Me. 28; Harrison v. Harnel, 5 Taunt. 784; Gray v. Brown, 22 Ala. 273.

(m) Clark v. Badgley, 3 Halst. 233; Thomas v. Cleaves, 7 Mass. 361; Oyster v. Longnecker, 16 Pa. 274: Livingston v. Indianapolis Ins. Co. 6 Blackf. 133; Upson v. Austin, 4 Ala. 124; Kirkpatrick v Houston, 4 Watts & S. 115; Bank of U. S. v. Owens, 2 Pet. 527; Hodges v. Lovat, Lofft, 50. Fisher v. Beasley, use of * money be free from the taint of usury, and consebarred by not being brought within a year after the offence of usury was committed. The cases of Lloyd v. Williams, 2 W. BL 792, and Mallory v. Bird, cited in Cro. Eliz. 20, were referred to for the defendant, in which latter case, it is said: "If one contracts to have twenty pounds for the loan of a hundred pounds, if he taketh nothing of the twenty pounds be is not punishable by the statute, but if he taketh anything, if but one shilling, this is an affirmance of the contract, and he shall render for the whole contract:" But Buller, J., said, that the answer given by Astor, J., to that case, when it had been cited on some former occasion, was, that it meant one shilling above the legal interest. Lord Mansfield said: " It became material in this case to determine when the usury was complete. One side contended, that it was so upon the payment of the premium, and 1 long inclined to that opinion, because it was paid eo nomine as above legal interest. But I am now satisfied, as we all are, that the offence was not complete till the half year's interest was received. There are two branches of the statute. Under the first, every agreement, contract, and security, for more than legal interest, is void. Therefore the bond given to the defendant in this case was void. But under the second the penalty is incurred only by taking, accepting, and receiving, more* than legal interest. All the authorities lean this way, both ancient and modern. In Lloyd v. Williams, more than legal interest had been paid at first' Maddock qui tarn v. Hammett, 7 T. R. 184, was an action on the statute, the usury alleged being the discount of a note for £1,000. But the point on which the case turned was, that on the day when the note became due, the maker discharged it by giving another note, which included the amount due upon the first note, and a further sum advanced by the defendants, which last note was outstanding and unsatisfied at the trial of this case. Buller, J., at Nisi Prius, was of the opinion that usury had not been committed, no money having been received by the defendants, and Lord Kenyon, C. J., delivering the opinion of the court, upon a motion to set aside the nonsuit, said: "The objection here is, that nothing has been received by the defendants, either for interest or principal, except a paper security, which, till it has been paid, is no payment whatever, and may ultimately turn out to be worth nothing. The plaintiff says that it was given for the first note, which was given on a usurious contract; if so, the second note is also bad. But the plaintiff cannot be permitted to contend both ways; that it is good, because given in payment of the first note; and bad, because that first note for which it was given in discharge was bad. It is true that a payment, either in money or money's worth, would be sufficient; and it shall not be permitted to a party who has knowingly received anything, as interest, to apply it afterwards to another account, as he finds it convenient. But here the defendants have not received anything; and therefore I am of opinion that the direction of the learned judge at the trial was right." In Pearson v. M'Gowran, 3 B. & C. 700, 5 Dowl. & R. 616, the venue, in an action of debt for penalties, was laid in Middlesex, and the offence was alleged to be, that usurious interest was secured to the defendant, by a bill of exchange accepted and afterwards paid by a person named Bottril. On the trial it appeared, that the contract was made and the acceptance given in Middlesex, but that the bill was paid in London, to the holders, to whom the defendant had indorsed it. Abbott, C. J., delivering the opinion of the court, referred to the statute providing that any person taking, accepting, or receiving above £5 per cent. interest, should forfeit the treble value of the moneys lent, and providing that the forfeiture should be sued for in the county where the offence was committed, and said (5 D. & R. 619): " Then the only question is, What is the offence ? We think it consists in taking, accepting, and receiving usurious interest. The corrupt contract precedes and forms no part of the taking, therefore the offence here was not committed partly in Middlesex and partly in London, and the only materiality of the contract is to show the real nature and consequent illegality of the taking. . . . We are of opinion that the venue in this case ought to have been laid in London, and not in Middlesex."And in Simpson qui tarn v. Warren, 15 Mass. 460, where the defendant had discounted a note for $400, at the rate of two per cent. per month, which was unpaid at the time this action for the penalties was brought, it was held, that no usury had been committed. Parker, C J., said: "The whole sum loaned was not paid over, but the balance, after deducting the discount, so that in fact four hundred dollars were never lent, as stated in the declaration, but a less sum, for which the borrower promised to pay four hundred dollars, which was the principal lent and the excessive interest. The defendant has then quently can be enforced, yet if usurious interest be actually paid received nothing, either principal or interest, and therefore he cannot be liable for the penalty." Wright v. Laing, 3 B. & C. 165; Stevens v. Lincoln, 7 Met. 525, are to the same effect. See also Scurry v. Freeman, 2 B. & P. 381. But if a sum more than equal to the legal interest upon the sum substantially loaned or forborne, be received, the offence of usury is complete, whether the principal be repaid or not. In Wade qui tarn v. Wilson, 1 East, 195, £600 being due from G. to the defendant, ten guineas were paid by G. to the defendant, by way of premium, for the defendant's forbearance for one year, and G. executed his note to the defendant for £600 at £5 per cent. A half year's interest of £15 was afterwards received by the defendant, upon the note, and it was held that upon this payment usury was committed. Lord Kenyan, said: "Here the party having ten guineas premium in hand, and interest accruing from day to clay, actually received interest qua interest for half a year, which made what he received upon the whole amount to more than lawful interest for that time, upon the sum lent." Lawrence, J., said: "Here, then, is a premium paid of ten guineas, at first, which was to run through the whole year, and interest accruing daily on the principal sum, the defendant actually received interest for the first half year, which, together with what he had before received by way of premium, amounts to more than legal interest. That immediately constituted usury." Le Blanc, J., said:'"1 am of opinion that at least one moiety of the premium is to be apportioned to the half year's interest which was received, and that the true spirit of the agreement was, that the premium was to run through the whole year in proportion as the interest accrued; and therefore, upon the whole, I think the contract proved sustains the count, and that the usury was complete when the first half year's interest was paid." In Lloyd out tarn v. Williams, 2 W. Bl. 792, Hinchliffe borrowed £100 for three months, of the defendant, which he received, and paid the defendant thereout £6 5s. by way of interest, in advance, and gave the defendant his note for £100 payable in three months. De Grey, C. J., and Blackstone, J., a majority of the court, held that the offence of usury was consummated and completely committed on making the corrupt agreement, and receiving the interest in advance. In Commonwealth v. Frost, 5 Mass. 53, the defendant had loaned money to Ebenezer Clough, on a note for $200, in ninety days paying him $187, having retained $13 for the ninety days' interest. At the expiration of the term, another note for the same amount was given, Clough paying fourteen dollars in cash, for the extension of the time ninety days longer. This note was also renewed for ninety days, and sixteen dollars paid by Clough on its renewal, for the reception of which last interest the defendant was indicted. The court said it was clear "that the taking of the sixteen dollars, as the compensation for the loan, that sum exceeding lawful interest, completed the offence of usury, whether the principal sum was ever paid or not." There has, however, been a tendency to consider, in contracts of this last nature, the money actually received by the borrower as the amount of the loan; and although the securities given are for an amount sufficiently more than the sum received, to make the contracts usurious, if the legal per cent. of interest is paid thereon, not to consider the offence of usury complete until a payment of such interest is made. This was the view Gould, J., was inclined to take, in Lloyd v. Williams, supra; and in Scurry v. Freeman, 2 B. & P. 381, in which the defendant lent Robert Hooley £500 upon security given for that amount, who, a previous agreement having been made that something more than legal interest should be paid, but no particular sum having been agreed upon, offered the defendant back £50, which he directed to be given to his son, the court (consisting of Heath, Rooke, and Chambre, judges) were very clearly of opinion that the receipt afterwards of £25, as one year's interest upon the debt, was usurious, so that an action under the statute within one year after its reception would lie, inasmuch as the loan could only be deemed a loan of £450, since the defendant had taken back £50 out of the £500. So also, Gibson, C. J., in Ovster v. Long-necker, 16 Pa. 274, says, there is a distinction between interest and a bonus; and that a return of part of the sum on which interest is reserved, reduces the contract essentially to a loan of the residue, and that therefore the offence of usury is not committed until interest has actually been paid upon the sum reserved as the debt. But the better opinion would seem to be, that such agreements are usurious whenever more than the legal interest on what is understood by the parties as the principal debt, is paid, upon it afterwards, *the penalty is incurred, (n) And if the usurious interest is payable at intervals, the penalty is incurred by the first payment and receipt;(o) but it would seem that no more than one penalty can be incurred upon the same loan, although further instalments continue to be paid. (p) since the statute of Anne declares it shall be usury to receive more than five pounds per cent. for forbearing or giving day of payment; so that, as Mr. Justice Blackstone remarked, in Lloyd v. Williams, "interest may as lawfully be received beforehand for forbearing, as, after the term is expired, for having forborne;" and if in either case more than five per cent. is taken, usury is committed. See remarks of Bayley, J., in Wood v. Grim-wood, 10 B. & C. 699.